141 F3d 1177 Neighbors of Cuddy Mountain Idaho Sporting Congress Inc v. Boise Cascade Corporation

141 F.3d 1177

INC., Plaintiffs-Appellants,
United States Forest Service, an agency of the United States
Department of Agriculture, Defendant-Appellee

No. 97-35654.
D.C. No. CV-96-0553-S-MHW.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1997.
Decided Mar. 4, 1998.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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Appeal from the United States District Court for the District of Idaho Mikel H. Williams, Magistrate Judge, Presiding.


Before FLETCHER and O'SCANNLAIN, Circuit Judges and SCHWARZER,** District Judge.




This memorandum addresses the remaining issues not discussed in our opinion filed contemporaneously with this memorandum. Plaintiffs, Neighbors of Cuddy Mountain and Idaho Sporting Congress (collectively, Neighbors) seek to enjoin the sale of timber in the Cuddy Mountain area of Payette National Forest, claiming that the Forest Service, in determining whether such a sale could go forward, violated the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et. seq., and the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et. seq. As to three of the issues raised by Neighbors, we agree that the Forest Service has violated the NFMA and NEPA. These issues are addressed in our published opinion. We disagree with Neighbor's remaining arguments.



We review de novo the district court's grant of summary judgment. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997).


Agency actions challenged under the NFMA are reviewed to determine if they were arbitrary and capricious, an abuse of discretion, or not in accordance with the law. Lowe, 109 F.3d at 526; Inland Empire Public Lands Council v. U.S. Forest Serv., 88 F.3d 754, 760 (9th Cir.1996). For actions brought under NEPA, challenging the adequacy of an EIS, the court employs a rule of reason to determine whether the EIS contains a "reasonably thorough discussion of the significant aspects of probable environmental consequences." Lowe 109 F.3d at 526. Under this standard, review consists only of insuring that the agency took a "hard look." Id.


I. Disclosure of the 1991 Biological Evaluation (BE)

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Neighbors claims that the 1991 BE prepared by the Forest Service was ignored and never released to the public, in violation of NEPA. The 1991 BE, prepared by the Forest Service, suggested that the flammulated owl would be adversely affected by the Grade/Dukes timber sale.


While the Forest Service has no obligation to accept the findings of every study as valid, it may be arbitrary to ignore reliable and comprehensive data. See American Tunabout Ass'n v. Baldrige, 738 F.2d 1013, 1017 (9th Cir.1984). However, the Forest Service did not ignore the results of the 1991 BE. When the Regional Forester reversed the Forest Supervisor's first Rule of Decision to proceed with the timber sale, the Regional Forester noted that the 1991 BE mandated further study of the flammulated owl and reversed the Forest Supervisor on that issue. A subsequent biological evaluation was conducted that assessed the impact of the timber sale on the flammulated owl, and as a result of that study, mitigating measures were adopted to protect that species.


In terms of making the 1991 BE available to the public, while the Forest Service is required to distribute a draft EIS for public comment, see 40 C.F.R. § 1503.1, it need not do the same for a BE. See Forest Conservation Council v. Epsy, 835 F.Supp. 1202, 1212 (D.Idaho), aff'd, 42 F.3d 1399 (9th Cir.1993) (holding that the Forest Service is not required by law to secure public comment regarding a BE, and that deference to the Forest Service's manual provisions regarding BE's--that a BE does not trigger all of the procedural mechanisms of NEPA--is appropriate). In any event, it appears that at least some persons had access to the 1991 BE since it was used as one of the bases for appealing the Forest Supervisor's first decision to proceed with the sale. We also note that the 1991 BE is now irrelevant in the sense that the decision before this court is the Forest Supervisor's second Rule of Decision, and the second rule of decision relies upon the 1993 BE for support. The 1993 BE was conducted precisely because the earlier, 1991 BE had suggested additional research regarding the project's effect on the flammulated owl.


II. Ignoring the Consensus of its Own Inter-Disciplinary


Team of Experts Opposing the Sale; Failure to

Disclose the Disagreements Among its

Experts in a NEPA Document


The Forest Service did not ignore the findings of its own experts that the Grade/Dukes sale would threaten the viability of the flammulated owl, nor did it "cover up" this finding. Neighbors claims that an internal memorandum written by Forest Service experts suggests that the sale would threaten the viability of the flammulated owl, and that minor adjustments in the logging schedule would not mitigate that effect.


These claims are spurious. Under NEPA, the Forest Service does have an obligation to respond to "reputable scientific criticisms," including criticisms from their own experts. Lowe, 109 F.3d at 530. In this case, however, there was no "criticism" that required a response because there was no apparent conflict among the Forest Service's experts.


The memorandum referred to by Neighbors was written before the 1993 BE was completed, and more importantly, by the same persons who wrote the 1993 BE.1 The 1993 BE incorporates the views expressed in the internal memorandum cited by Neighbors. Just as the internal memorandum cited by Neighbors did, the 1993 BE too concludes that mitigating measures would be necessary to protect the habitat of the flammulated owl. The internal memorandum appears to be an initial summary of what the 1993 BE would ultimately conclude. Neighbors fails to explain that the 1993 BE goes further than the memorandum did and suggests what mitigating measures would preserve sufficient habitat. The 1993 BE concludes that if the mitigating measures are adopted, the Grade/Dukes sale will not result in a "trend towards Federal listing" of the flammulated owl. These experts, then, did not "oppose" the sale. Rather, they suggested changes necessary to preserve sufficient habitat for the flammulated owl, and these changes were implemented. Because there was no conflict, we do not address Neighbors' claim that the Forest Service must reveal internal conflicts among its experts to the public.

III. The 1994 Wildfires


During the summer of 1994, after the SEIS for the Grade/Dukes sale was completed and the Forest Supervisor issued his second Rule of Decision to proceed with the sale, a series of wildfires occurred on the east side of the Payette National Forest. The Grade/Dukes project and Cuddy Mountain are on the west side of Payette.


An agency must prepare a supplemental EIS if: "There are significant new circumstances or information relevant to environmental concerns bearing on the proposed action or its impacts ." 40 C.F.R. § 1502.9(c)(2). The decision whether or not to prepare a supplemental EIS is reviewed for an abuse of discretion. See Headwaters, Inc., v. BLM, 914 F.2d 1174, 1177 (9th Cir.1990). An agency must take a "hard look" at the new information to determine if a new SEIS is necessary. Id. A supplemental EIS is not necessary if the agency provides a "reasoned evaluation of the lack of significance of the new circumstance." Leavenworth Audubon Adopt-A-Forest Alpine Lakes Protection Soc'y v. Ferraro, 881 F.Supp. 1482, 1492 (W.D.Wash.1995).


The Forest Service provided a reasoned evaluation in this case as to why a second SEIS was not necessary. To explain its decision not to prepare a second SEIS to study the impact of the 1994 wildfires, the Forest Service produced the declaration of John Baglien, one of the persons responsible for determining that a SEIS was not necessary. In determining that the 1994 wildfires did not affect the Forest Service's evaluation of the Grade/Dukes sale, Baglien explained that the Forest Service relied on the Broadscale Assessment (BA) of those fires. Baglien first notes that the fires occurred over 50 miles from the Grade/Dukes area,2 and that the east and west side of Payette are located in different river basins, have different dominant geomorphology, and different forest types. In terms of species viability, the BA concludes that habitats suitable to support viable populations of the flammulated owl, northern goshawk, and great gray owl, remained in the area assessed after the fire.3 Because suitable habitat remained, the Forest Service concluded that it was not necessary to reassess the impact of the Grade/Dukes sale on those species. The Forest Service's explanation is thus "reasoned" and grounded.

IV. Great Gray Owl


Neighbors' contention that the Grade/Dukes sale will result in a "federal listing" of the Great Gray Owl, in violation of the NFMA, is unsupported.


The 1993 BE concludes that if the Forest Service adopted the mitigation measures proposed, which it did, the sale would not result in a trend towards federal listing of the great gray owl. Neighbors contends that this claim is unfounded because the mitigating measures upon which the Forest Service rely in making this determination were related to preserving the habitat of the flammulated owl, not the great gray owl.4 This is untrue, however. The 1993 BE states that,


Specific mitigation was considered for harvest units which corresponded to flammulated and great gray owl territories. Refer to Table II in the mitigation for flammulated owls for a complete description of mitigation by units. In all units which correspond with great gray owl nesting territories, prescriptions were modified to provide minimum upper canopy closures of 60%.


(emphasis added).


V. Idaho's Water Quality Standards.


Finally, Neighbors claims that the Grade/Dukes project would violate Idaho's water quality law. The Forest Service is subject to, and shall comply with, state and local requirements respecting the control and abatement of water pollution. See 33 U.S.C. § 1323(a).


Neighbors contends that Grade Creek "appears to" violate Idaho's water quality standards. It does not suggest, however, in what way Idaho's water quality standards have been violated. The Forest Service, in its final Rule of Decision, noted, "The State of Idaho Forest Practices Water Quality Management Plan and Forest Service Soil and Water Conservation Practices will be implemented to meet state and federal water quality standards." Neighbors provides no evidence that this statement is not true, and neither suggests why nor produces any evidence that Idaho's water quality standards have been violated.



As to the issues discussed in this memorandum, we affirm the magistrate judge's findings that the Forest Service did not violate the NFMA or NEPA. As noted in our published opinion, however, the magistrate judge's grant of summary judgment in the Forest Service's favor is reversed and we remand to the Forest Service to conduct further proceedings consistent with our published opinion.


Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3


Shane Jeffries and Floyd Gordon were two of the three authors of that internal memorandum. They were also the preparers of the 1993 BE


Compare, for example, Leavenworth Audubon Adopt-A-Forest, 881 F.Supp. at 1492, which held that where wildfires burned within a quarter mile of the sale area but did not reach it, Forest Service acted arbitrarily in not studying impact of the fire on the watershed that would be affected by the sale


The area assessed by the BA did not include the west side of Payette, and thus did not include the Grade/Dukes area. The study, therefore, did not rely on the existence of the habitat in the Grade/Dukes area to reach its conclusion that sufficient habitat remained after the fires in Payette as a whole

Regarding the flammulated owl, the study found that "habitat remains to support viable populations" of the owl. The study did note that, "significant further loss of habitat would have a major effect on persistence of the flammulated owl ... within the Main and South Fork Salmon River corridors." (emphasis added) This does not suggest, however, that loss of habitat on the west side of Payette, due to the Grade/Dukes sale, would have such an effect.

Regarding the Northern Goshawk, the study found that populations would persist because although the fires did affect the amount of available habitat, the impact was within the historical range. Regarding the Great Gray Owl, the study likewise found that the loss of suitable habitat was within the historical range for the species, and that the species adapted to natural fire events.


The flammulated owl typically occupies a nest with 55% canopy cover or less, while the great gray owl needs at least 60% canopy cover for its nest